This was an appeal to the Appointed Person from the Hearing Officer's decision of 16 January 2004 (BL O/016/04). In that decision the Hearing Officer had found the opponent to be partially successful in respect of the applicant's Class 5 application, fully successful in respect of Class 30 but that opposition failed in respect of Class 32.

On appeal the opponent submitted that the Hearing Officer had been wrong to decide that "pharmaceutical and veterinary preparations and substances; infants' and invalids' foods" were not similar to "medicated nutritional powders, tablets and capsules, all for bodybuilding and sports nutrition" were not similar goods. A similar claim was made in relation to the applicant's Class 32 goods.

In relation to the Class 5 conflict, the Appointed Person considered that the submissions of the opponent had merit. In his view the Hearing Officer had given insufficient weight to the fact that both sets of goods were medicated and this being the case they would be sold through the same trade channels and to the same users. They were thus similar goods and as the respective marks are very similar there was a likelihood of confusion. Opposition thus succeeded in respect of Class 5.

The Appointed Person confirmed the Hearing Officer's decision in relation to the applicant's Class 32 goods and dismissed the appeal in relation to that ground of opposition.

During the proceedings the applicant submitted that in fact its Class 5 goods were not medicated and offered to delete that reference from its specification. The Appointed Person refused the request as he did not believe such an amendment could be accepted under Section 39 of the Act.